Pennsylvania National Mutual v. Jo Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cv-00920-PMD Copies to all parties and the district court/agency. [999835504].. [15-1575]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1575

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY,
Plaintiff - Appellant,
v.
JO A. LEWIS; ROGER W. LEWIS; EXCEL MECHANICAL LLC,
Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:13-cv-00920-PMD)

Argued:

May 10, 2016

Decided:

May 27, 2016

Before MOTZ, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: John Robert Murphy, MURPHY & GRANTLAND, P.A., Columbia,
South Carolina, for Appellant.
Bert Glenn Utsey, III, PETERS,
MURDAUGH, PARKER, ELTZROTH & DETRICK, P.A., Walterboro, South
Carolina; Jenny Anderson Horne, JENNY HORNE LAW FIRM, LLC,
Summerville, South Carolina, for Appellees. ON BRIEF: Jason P.
Luther, MURPHY & GRANTLAND, P.A., Columbia, South Carolina, for
Appellant. Lee Deer Cope, PETERS, MURDAUGH, PARKER, ELTZROTH &
DETRICK, P.A., Hampton, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pennsylvania National Mutual Casualty Company brought this
declaratory judgment action against Roger W. Lewis, his wife, Jo
A. Lewis, and his solely owned company, Excel Mechanical, LLC.
Penn National sought a declaration that the commercial general
liability policy (the Policy) it had issued to Excel did not
cover the claim proffered by Mr. Lewis and Excel.

After a bench

trial,

of

on

the

basis

of

extensive

findings

fact

and

conclusions of law, the district court declared that the Policy
did provide coverage to Excel and Mr. Lewis.

Penn National

appeals.
This

action

arises

out

of

a

case

filed

by

Mrs.

Lewis

against Excel and her husband, in which she alleges that on
September

4,

involving

a

2011,

she

watercraft

was

injured

owned

and

in

a

operated

boating
by

Mr.

accident
Lewis.

Specifically, Mrs. Lewis asserts that in attempting to ground
the watercraft on a sandbar, Mr. Lewis caused a collision that
trapped Mrs. Lewis’s lower leg between the boat and the sandbar,
resulting in serious permanent injuries.

Mrs. Lewis further

alleges that at the time of the accident “there were two other
passengers

on

the

Boat

whom

[Mr.]

Lewis

was

entertaining

as

business prospects of Excel” and so Mr. Lewis “was engaged in
the conduct of Excel’s business.”

In light of the purported

business purpose of the trip, Mrs. Lewis, who seeks actual and
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punitive damages, asserts that Excel is vicariously liable for
Mr. Lewis’s actions.
In March 2012, six months after the accident, Mr. Lewis
filed a claim with Penn National, reporting that he was “in the
boat

. . .

with

accident

and

activity

covered

a

that

potential
the

by

trip

his

customer”
was

at

therefore

company’s

Penn

the
a

time

of

the

business-related

National

Policy.

In

relevant part, that Policy provides:
SECTION II - WHO IS AN INSURED
1. If you are designated in the Declarations as:
* * *
c.
A limited liability company, you are an insured.
Your members are also insureds, but only with respect
to the conduct of your business.
Your managers are
insured, but only with respect to their duties as your
managers.
The Policy further provides liability coverage for damages that
an “insured becomes legally obligated to pay” as a result of
“bodily injury or property damage.”
In January 2013, Mrs. Lewis filed a federal maritime tort
action against Mr. Lewis and Excel, seeking compensation for her
injuries.

In

response,

Penn

National

initiated

this

action

against the Lewises and Excel, seeking a declaratory judgment
that

the

Policy

does

not

cover

the

accident,

and

that

Penn

National therefore has no duty to indemnify Mr. Lewis or Excel
or defend them in the underlying action.

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At the bench trial, Penn National maintained that the boat
trip

was

not

business-related

and

that

claiming it was to obtain coverage.

Mr.

Lewis

was

only

Penn National pointed to

the fact that no one, besides Mr. Lewis, testified that they had
thought the trip was business-related, that Mr. Lewis had filled
the boat’s gas tank that day but not expensed the cost to Excel,
and that he had not submitted his Penn National claim until six
months after the accident. 1
Mr. Lewis testified at trial that he routinely entertained
potential

customers

relationships.

on

his

boat

to

cultivate

business

He conceded that he had not bought gas that day

but contended that he did expense to Excel the gas he had bought
a week prior in anticipation of the outing.

Mr. Lewis also

explained that he did not file his claim for coverage under the
Penn

National

Policy

immediately

1

because

his

life

was

“in

Penn National sought to admit evidence related to a State
Farm insurance policy, under which the Lewises had received
$5,000 for medical payments resulting from the accident.
Mr. Lewis had first contacted State Farm only ten days after the
accident, which Penn National argued made his much later Penn
National claim suspect.
A State Farm agent stated in a
deposition that, had State Farm been aware the accident was
business-related, the Lewises would not have qualified for the
payouts they received, but State Farm’s claim file did not
contain any indication that whether the trip was businessrelated had ever come up; there appeared to have been no inquiry
from State Farm and no representations from Mr. Lewis either
way.
Contrary to Penn National’s contention on appeal, the
district court did not abuse its discretion in excluding all
evidence related to the State Farm policy as “irrelevant” and
potentially “confusing [to] the [advisory] jury.”
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turmoil” while he helped his wife recover from her injuries, and
because

he

reviewing

only
his

discovered

policy

he

months

had
later

watercraft
in

coverage

connection

with

when
an

unrelated event.
The district court found Mr. Lewis credible, based on his
“presentation and demeanor on the witness stand.”

The court

concluded that the Penn National policy was unambiguous, and
that “at the time of the Trip and resulting Accident, Mr. Lewis
was operating the Boat in the course of his employment and with
respect to the conduct of Excel’s business and his duties as the
manager of Excel,” as required for coverage under the Policy.
The court noted that “[t]he fact that the Trip included or may
have included elements of familial entertainment and friendly
fellowship does not deprive the Trip of its business purpose.” 2
Accordingly, the court declared that Lewis’s claim qualified for
coverage, indemnification, and defense under the Penn National
Policy.

2

An advisory jury convened by the district court, with the
consent of the parties, agreed with this conclusion. The court
instructed the advisory jury that it must decide whether Lewis
“engaged in any [business] activities” during the trip.
The
advisory jury returned a unanimous verdict that Lewis had
engaged in “activities with respect to the conduct of Excel
Mechanical’s business” and “with respect to his duty as Excel
Mechanical’s manager during the boat trip.”
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Having

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carefully

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considered

the

controlling

law

and

the

parties’ briefs and oral arguments, we affirm on the reasoning
of the thorough opinion of the district court.
AFFIRMED

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